Citation Nr: 1320484 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 96-44 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased (compensable) disability rating for the status post fracture of the right ischium. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active service from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Buffalo, New York. In that decision, the RO continued the noncompensable rating for the residuals of a fracture of the right ischium. In April 1998, the Board remanded this claim along with other intertwined claims for service connection for low back and right hip disabilities so the service connection claims could be adjudicated. In April 1998, the RO denied service connection for low back and right hip disabilities, to include degenerative joint disease of the right sacroiliac joint and low back pain with radiculopathy and myofascial pain syndrome. The Veteran did not file a notice of disagreement with respect to this decision, and it became final. In October 2010, a supplemental statement of the case acknowledged the increased rating claim for evaluation for the residuals of a fracture of the right ischium was still on appeal. In a December 2010 rating decision, the RO denied petitions to reopen claims for service connection for low back and right hip disabilities to include degenerative joint disease of the right sacroiliac joint and low back pain with radiculopathy and myofascial pain syndrome; these issues were properly appealed. In December 2011 and November 2012, the Board remanded all the above claims for further development. In December 2011, the Board found that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was associated with the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial or a regular increased rating). Also in the November 2012, decision, the Board reopened the claims for service connection. In March 2013, the Appeals Management Center (AMC) granted claims for service connection for the following: radiculopathy and nerve damage of the right lower extremity; right hip traumatic arthritis; traumatic injury residuals with spurring at L4-5 and L5-S1; and impairment of the thigh. Entitlement to a TDIU was also granted as well as special monthly compensation and ancillary benefits (automobile and adaptive equipment, etc.). Given that this grant of benefits encompasses many residuals of a jeep accident in service, the Board has re-characterized the particular increased rating on appeal from "residuals of a fracture of the right ischium" as "the status post fracture of the right ischium." As explained further below, the Board finds only the increased compensable disability rating for the status post fracture of the right ischium is currently on appeal; the other issues have been fully resolved. The issue of entitlement to TDIU prior to July 22, 2011, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The status post fracture of the right ischium is manifested by a fully healed fracture site, which causes no pain or functional impairment. CONCLUSION OF LAW The criteria for a compensable evaluation for the service-connected status post fracture of the right ischium have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5298 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The United States Court for Veterans Appeals (Court) had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit vacated the Court's decision, overturning the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The generic first, third, and fourth elements (contained in the Court's decision) were not disturbed by the Federal Circuit's decision. Here, the Veteran was sent a letter in June 2010 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in the June 2010 communication, and the claim was thereafter readjudicated several times (see February 2011, March 2012 and March 2013 supplemental statements of the case). Any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As mentioned, the Board remanded this claim twice, including for a fully adequate VA examination report that explains all status post of the increased rating on appeal. Here, the AMC granted several claims for service connection that were conceded as being related to a jeep accident in service; these disabilities are separately service-connected and rated. These issues are no longer on appeal. The Board finds that there has been substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Quartuccio, 16 Vet. App. 183. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability and coordination of rating with impairment of function are expected in all instances. 38 C.F.R. § 4.21 (2012). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Certain additional regulations apply to disabilities that are rated on the basis of limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). However, the right ischium is not a joint subject to limitation of motion. (The ischium is the bottom part of the pelvis bone. See Dorland's Illustrated Medical Dictionary, pp 976; 1749, Plate 45 (31st ed.2007)). The number of applicable DCs is limited. Even traumatic arthritis demonstrated on X-ray is rated on the basis of limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, DC 5003, 5010. Currently, the Veteran's disability is rated by analogy under DC 5299-5298. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous); 38 C.F.R. § 4.27 (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). DC 5298 addresses the removal of the coccyx. A 10 percent rating is warranted for partial or complete removal with painful residuals. A noncompensable rating is warranted for no painful residuals. Analysis The Veteran was originally given a noncompensable rating for residuals of a fracture of the right ischium, effective in February 1971; the original diagnostic code was simply DC 5299. In October 1995, the RO continued this rating. On a December 2010 RO rating code sheet, the DC was changed to DC 5299-5298. The Veteran filed a notice of disagreement and timely appeal. The bulk of the evidence in the file, including the Veteran's statements, addresses the now service-connected disabilities of the right hip, radiculopathy, spine and thigh. See June 1996 notice of disagreement and September 1996 appeal. As explained, these issues are no longer on appeal. A day after filing his claim in December 1994, the Veteran visited VA and complained of right hip pain and numbness. The Veteran stated he had pain in his right hip with walking if he wore his tool belt. This record was more focused on the Veteran's alcoholism. A December 1994 X-ray showed no prior fracture, however this X-ray did not show lower parts of the ischia (the site of the original fracture). A primary care noted from the same month noted the Veteran could run a mile before he had dyspnea on exertion. A June 1995 state worker's compensation evaluation noted the Veteran's assorted orthopedic complaints; he fell into a live electric panel in 1993 and had not worked since that time. This record references the December 1994 X-ray. The Veteran was given a VA examination in September 1995; a pelvic rock test was negative. The pelvis was evenly aligned. The VA films of the pelvis were noted to show early degenerative joint disease of the right sacroiliac joint, but as stated above, this X-ray did not show the original fracture site. There was no evidence for any prior fracture. The report noted right pelvic pain, but with reference to the sacroiliac joint only. There was also back pain and sensory changes in the back consistent with degenerative joint disease. Limitation of function was noted for the back only. In June 1997, the Veteran received a VA examination for the nerves. A past pelvic fracture was noted. Back, nerve, leg and radiculopathy problems were noted. The claims file was reviewed. The impression was residual pain and functional limitation secondary to associated original injury; radiculopathy; and right sacroiliac joint immobility with myofascial pain syndrome. Sleep was noted to be impaired due to pain and the pain was due to the lumbar spine injury. Letters from Dr. I., the Veteran's treating physician, were received in October 2002 October 2005 and July 2011. In 2002, Dr. I. described in-service injury and joint/nerve problems but did not address pelvic function. In 2005, Dr. I. wrote that the Veteran was been a patient since 1995. He had traumatic arthropathy in his pelvis and radicular pain due to a spine injury. (Arthopathy is any joint disease. Dorland's, p 160.) The July 2011 letter only discussed nerve damage and progressive atrophy. In July 2010, the Veteran had another examination. Unfortunately, no claims file was available to examiner. The Veteran was interviewed and past VA records were reviewed. The Veteran was noted to be a poor historian. The examiner noted range of motion findings. A July 2010 X-ray showed both hip joints appeared normal; there was minimal sclerosis adjacent to the right sacroiliac joint. In November 2010, the examiner reviewed the claims file including service treatment records and VA records. The examiner noted the Veteran was flushed and smelled of alcohol at the examination. The Veteran complained of chronic pain in his hip, back and right ankle. The examiner diagnosed spine, nerve and peripheral neuropathy disabilities. In discussing etiology, the examiner noted the healed fracture of the right ischium. In February 2012, the examiner reviewed the claims file and noted the status post fracture of the right ischium with no evidence of residuals from that injury. The medical history noted the Veteran was a poor historian, but later stated he was a good historian. The examiner opined that the right ischium fracture healed in 1971; there were no residuals. He had no functional limitations due to this disability. In December, the Veteran received another examination. The diagnosis was healed fracture of the right ischium with no residuals. While ranges of motion measurements were taken, they were used to explain hip and thigh function, not pelvic function. There was no malunion or nonunion of the femur, flail hip joint of leg length discrepancy. There were no scars. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the healed fracture of the right ischium. Regarding arthritis of the hip, the examiner explained: There is a distinction of hip and pelvis-veteran has some degenerative changes noted to the sacroiliac joint-this is the pelvis and noted on pelvic X-ray [of July 30, 2010]; this is part of the pelvis, not the hip. The sacroiliac joint is between the sacrum and iliac bone of the pelvis, it is no way related to the ischium, which is the part of the pelvis that was fractured. Degenerative changes to the sacroiliac joint of this level are consistent with the Veteran's age. The examiner went on to explain there were no residuals of the ischial fracture which healed in 1971 and explained there was a lack of functional impact from this healed fracture. Overall, the Board finds that the credible medical evidence establishes that the Veteran's service-connected status post right ischium fracture is manifested by a fully healed fracture site which causes no aspects of pain or functional impairment. Clearly, the Veteran has reported back, hip, thigh and radicular complaints. These issues have been granted and rated separately and are not on appeal. While right pelvic pain was reported once in the June 1995 VA examination report, as the December 2012 VA examiner explained, the ischium is not part of the sacroiliac joint. A 10 percent increase for pain under DC 5298 is not necessary. Additionally, as noted, the Veteran is already being compensated for the manifestations of the back, hip, thigh and radicular disabilities. Further, as explained, the status post right ischium fracture of the pelvis is not shown to involve a joint. Therefore, the limitation of motion codes of the musculoskeletal system do not apply. While the representative asserted in the May 2013 informal hearing presentation (IHP) that the Veteran is entitled to ratings under DCs for the hip without violating the prohibition against pyramiding, the Veteran is already in receipt of separate ratings for disabilities of the hips (currently rated under DC 5252 for limitation of flexion of the thigh and DC 5253 for impairment of the thigh). Separate additional ratings under the hip codes would overlap with the existing hip ratings and would constitute pyramiding. Esteban v. Brown, 6 Vet. App. 259 (1994). The representative also made arguments that could be construed as advocating ratings under DCs 5299-5262 (impairment of the tibia and fibula); but the Veteran's disability is not in area of the tibia or fibula. As the December 2012 VA examiner explained, there are no manifestations from the healed fracture site. The Board finds the evidence is against a compensable rating at any time during the period this claim has been pending. Staged ratings, extraschedular consideration, and TDIU Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart, 21 Vet. App. at 509-510. However, the record does not support the assignment of different percentage evaluations during the time period on appeal. No staged rating is warranted. Pursuant to 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria fully contemplate the Veteran's disability as noted above. The December 2012 VA examiner has stated there was a lack of manifestations regarding the fracture site which is currently on appeal. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is, therefore, not warranted. 38 C.F.R. § 3.321(b)(1). As noted above, the Veteran is already in receipt of a TDIU, effective in July 2011, and the Board is remanding the issue for further development as to entitlement to TDIU prior to that date. ORDER A compensable evaluation for the service-connected status post fracture of the right ischium is denied. REMAND The Court has held that TDIU is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). An inferred claim for TDIU arises where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case the Board has previously found that the Veteran satisfied each of these requirements. His increased rating claim has been pending since at least 1998 and there is evidence that he has been unemployed since 1993; and a VA physician has provided multiple statements beginning in 2002 that indicate that the Veteran is totally disabled. The AMC granted TDIU effective in July 2011, because that is the date that his disabilities met the percentage requirements for that benefit under 38 C.F.R. § 4.16(a) (2012). VA policy is; however, to grant TDIU in all cases in which a veteran's service connected disabilities prevent gainful employment regardless of the percentages. 38 C.F.R. § 4.16(b). In cases where there is evidence of unemployability, but the percentage requirements are not met, the case will be referred to VA's Director of Compensation and Pension (C&P) for adjudication. The Board cannot grant TDIU where the percentage requirements are not met, unless it first insures that the claim is adjudicated by the Director of C&P. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, this appeal is REMANDED for the following: 1. Refer the Veteran's inferred claim for entitlement to TDIU prior to July 22, 2011, to the Director of C&P for adjudication in accordance with 38 C.F.R. § 4.16(b). 2. If the claim is not fully granted, issue a supplemental statement of the case and return the appeal to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs